No. 86-145 IN THE SUPREME COURT OF THE STATE OF MONTANA 1986

STATEOF MONTANA, Plaintiff and Respondent,
-vsJERRY LATTIN,Defendant and Appellant.

APPEAL FROM: District Court of the Eighth JudicialDistrict, In and for the County of Cascade, TheHonorableThomasMcKittrick, Judgepresiding.
COUNSEL OF RECORD:
ForAppellant: John Keith,Great Falls,Montana
For Respondent: Hon. Mike Greely,Attorney General,Helena,Montana DorothyMcCarter,Asst. Attorney General,Helena Patrick L. Paul,Cascade County Attorney, Great Falls, Montana; Antonia P. Marra,Deputy

Submitted on Briefs: May 30, 1986 Decided: July 29, 1986

Filed: 

### JUL291986

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### -.. ClerkMr. Justice Fred J. Weber delivered the Opinion of the Court.

Defendant Mr. Lattin appeals his criminal sentencingby Cascade County District Judge ThomasMcKittrick, whom he had moved to disqualify. We affirm. The issue is whether JudgeMcKittrick erred in assuming initial jurisdiction over the motion to disqualify and in denying thatmotion. Mr. Lattin was charged with sexual assault upon his minor stepdaughter. On the date originally set for trial,he entered a guilty plea. Judge McKittrick ordered a pre-sentence investigation, revoked Mr. Lattin's bail, and set a sentencing date for the followingmonth. At his sentencing hearing,Mr. Lattin filed a motion to disqualify Judge McKittrick. The affidavit in support of the motion alleged bias or prejudice against Mr. Lattin, demonstrated in a discussion prior to the sentencing hearing, in which Judge McKittrick allegedly told Channing Hartelius,an attorney, that Mr. Lattin would receive a jail sentence. Although it was not required to do so, the court allowed evidence in support of the motion. Mr. Hartelius testified that about a month previously he had approached Judge McKittrick, at Mr. Lattin's request, about releasing Mr. Lattin on bail pending sentencing. He testified that Judge McKittrick had stated that "under the circumstances of this situation, that there would probably be some jail time." The motion for disqualification was denied. Judge McKittrick found itwas not timely filed, no causewas shown for failure to timely file, and the supporting affidavitdid not allege a personal bias or prejudice. Mr. Lattin arguesthat JudgeMcKittrick erred inproceeding with the sentencing after the filing of the motion for disqualification. Section 3-1-802,MCA,provides inpertinent part:
Whenever a party to any proceeding in any court makes and files a timely and sufficient affidavit that a judge before whom the matter ispending has a personal bias or prejudice either againsthim or in favor of any adverse party, such judge shall proceed no further therein. In the case of a district judge, another district judge shall be assigned by the chief justice of the Supreme Court to hear such disqualification proceedings. 

# . . The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than twenty days before the original date of trial, or good cause shall be shown for failure to file it within such time. It shall be accompanied by a certificate of counsel of record stating that it has been made in good faith. Mr. Lattin argues that once his motion for disqualification and supporting affidavitwere filed,JudgeMcKittrick had no further jurisdiction over this case. He cites State v. Duncan (Mont. 1981), 623 P.2d 953, 954, 38 St.Rep. 202, 204, in which this Courtheld that once amotion for disqualification of a district judge is made, the case comes "under the singular authority and jurisdiction this Court.

### " That
case was decided under former $ 3-1-801,MCA, (1981),which
was substantially the same as the current law. Mr. Lattin also cites the holding from In re Marriage of Gahr (Mont.

In all judicial proceedings, a judge may be disqualified for actual bias on the filing of an affidavit supporting that allegation. Upon receipt of such an affidavit,the presiding judgemay dono more than to refer thematter to the Chief Justice, who, if the affidavit warrants an inquiry, will appoint another judge tohear thematter. However, this Court has affirmed a district court's denial of an untimelymotion for disqualificationof a judgefor cause. State v. Harvey (Mont. 1986), 713 ~.2d 517, 43 St.Rep. 46. The statute, by its terms, provides that a district court shallproceed no further wherever a timely and sufficient affidavit of bias or prejudice is filed. The timeliness of the affidavit is an initial matter for the district court todetermine. Mr. Lattin's January 22, 1986motion to disqualify Judge McKittrick was filed later than the statutory 20 days before the December 9, 1985 original date of trial. He must show good cause for failure to timely file. The affidavit in support of the motion for disqualification does not give

### any reason forMr. Lattin's failure to timely file the motion and affidavit. When the court allowed Mr. Lattin to present evidence in support of the motion, Mr. Hartelius testified that his conversation with Judge McKittrick had occurred "probably a month" before the sentencing hearing. The month-long delay in filing the motion and affidavit was not explained. We hold that JudgeMcKittrick properly found that the motion was not timely filed and good causewas not shown for failure to timely file themotion and affidavit. We affirm.